Sympathy but no Relief on Claim of FBI Torture

     (CN) – A New Jersey man who claims that FBI agents in Africa illegally detained and tortured him cannot sue the U.S. government, a divided D.C. Circuit ruled.
     Amir Meshal sought damages, known as a Bivens remedy, for the four months in which he was allegedly detained, interrogated and treated harshly by U.S. officials while traveling abroad in 2007.
     The New Jersey native said he was fleeing sectarian violence in Somalia when U.S. counterterrorism forces intercepted him in Kenya while seeking to root out members of al-Qaida.
     Hooded, handcuffed and flown to Nairobi, Meshal says FBI agents pressured him to waive his right to an attorney. They accused him of receiving weapons and training in an al-Qaida camp, and threatened to send him to Israel or Egypt, where he could be imprisoned and tortured, if he didn’t cooperate, Meshal said.
     About two weeks after his initial Jan. 24 capture, Meshal said he was flown back to Somalia so that officials could skirt a habeas petition filed on his behalf by a Kenyan human rights group. There, he was allegedly detained in an underground room with no windows or toilets known as “the cave.”
     He was again transferred on Feb. 16, this time to a secret location in Ethiopia, where FBI agents continued to interrogate him, he claimed.
     When he was eventually released in May, Meshal had lost about 80 pounds, according to court documents. He was never charged with a crime.
     He sued his interrogators and other government agents, claiming their detention and mistreatment of him violated his constitutional rights as a U.S. citizen.
     The government moved for dismissal, arguing that Meshal’s claims implicate national security and intelligence – matters properly left to the executive branch. It said continued litigation could risk exposing details about the United States’ relations with other countries, including specific terrorist threats and intelligence sources.
     Officials also argued that the lawsuit would “enmesh foreign countries and their officials in civil litigation in U.S. courts,” which could affect relations with those countries.
     U.S. District Judge Emmet Sulllivan in Washington, D.C., found Meshal’s claims “deeply troubling” but dismissed the case based on precedent last year.
     Though courts have traditionally been more willing to intervene “where American citizens’ constitutional interests are at stake,” recent decisions by the Fourth , Seventh and D.C. Circuits “doom” Meshal’s complaint, Sullivan said.
     The D.C. Circuit agreed that Meshel’s allegations are “quite troubling” but affirmed 2-1 on Friday.
     “Meshal downplays the extraterritorial aspect of this case,” Judge Janice Brown wrote for the majority. “But the extraterritorial aspect of the case is critical. Whether the reason for reticence is concern for our sovereignty or respect for other states, extraterritoriality dictates constraint in the absence of clear congressional action.”
     Brown was joined by Judge Brett Kavanaugh. Both are appointees of President George W. Bush.
     Congress has made no explicit remedy for U.S. citizens who allege a constitutional violation committed during a terrorism investigation conducted abroad.
     “If the courts, as amici argue, have radically misunderstood the nature and scope of Bivens remedies, a course correction must come from the Supreme Court, which has repeatedly rejected calls for a broad application of Bivens,” Brown said. “Because we follow its lead, we will ship our oars until that Court decides the scope of the remedy it created.”
     Judge Nina Pillard, an appointee of President Barack Obama, wrote a strongly worded dissent.
     “If Meshal’s tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act,” she said. “Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.”
     Pillard said legislation supports a constitutional damages claim when no other remedy is available, and that the FBI’s “mere recitation of foreign policy and national security interests” should not be enough to block Meshal’s allegations.
     Kavanaugh wrote a short concurrence, reminding readers that “the war [on terror] continues. No end is in sight.”
     Pillard noted that the government never designated Meshal as an enemy combatant, which might give it cause to detain him and deny his Miranda rights.
     To this point, Kavanaugh said: “the U.S. was conducting an investigation to determine whether Meshal was an enemy combatant. In this war, the U.S. seeks to proactively confront terrorist threats before they fully materialize. Close calls may arise in labeling an investigation as national-security-related. Not here.” (Emphasis in original.)

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